December 12, 2011 Right Side News Reports from the Federation for American Immigration Reform (FAIR) in this legislative weekly including the Supreme Court's decision to review the 9th Circuit Court of Appeals' injunction of S.B. 107 of Arizona.

Supreme Court to Take up Arizona SB 1070

Alabama AG Recommends Repealing Parts of HB 56

Feds to Review Student Visa Program in Wake of Human Trafficking Bust

Immigration Subcommittee Examines Weaknesses in Visa Waiver Program

Supreme Court to Take up Arizona SB 1070

The U.S. Supreme Court announced this morning it is granting Arizona Governor Jan Brewer’s request to review the 9th Circuit Court of Appeals’ injunction of her State’s tough immigration enforcement law, S.B. 1070. (See U.S. Supreme Court Order, Dec. 12, 2011) In April, the 9th Circuit upheld the Arizona District Court’s injunction of key provisions of the law. (SeeU.S. v. Arizona, No. 10-16645 (9th Cir. 2011); see also FAIR Legislative Update April 18, 2011) Justice Elena Kagan, who did not take part in the decision to hear the case, has recused herself from the case entirely because when she was U.S. Solicitor General she was involved in the Administration's decision to sue Arizona. (NPR, Dec. 12)

Current Solicitor General, Donald Verrilli Jr., who represents the Obama Administration, asked the Court last month to deny Governor Brewer’s appeal. In his brief, Mr. Verrilli told the justices that the Arizona law upsets a delicate balance that includes “law enforcement priorities, foreign-relations considerations and humanitarian concerns.” (NY Times, Dec. 12, 2011; see also Brief for the United States in Opposition to Certiorari, Nov. 2011) On the other hand, Arizona argued that the Administration's contention that states “are powerless to use their own resources to enforce federal immigration standards without the express blessing of the federal executive goes to the heart of our nation's system of dual sovereignty and cooperative federalism.” (Fox News Latino, Dec. 12, 2011)

Under the Supreme Court Rules, Arizona will be required to file its first brief in the case by the end of January 2012. Stay tuned to FAIR for updates as the case progresses…

Alabama AG Recommends Repealing Parts of HB 56

Last week, Alabama Attorney General Luther Strange sent a memorandum to the state’s legislative leaders, recommending that they repeal parts of Alabama’s immigration enforcement law, HB 56. (Politico, Dec. 7, 2011) Specifically, Strange recommended repealing the provisions that require aliens to carry their registration documents with them (a provision that mirrors federal law) and the provision that requires schools to collect non-identifiable data on the immigration status of students. These changes, Strange argued, could make the statute easier to defend in court.

The Department of Justice (DOJ) sued Alabama in August to stop HB 56 from taking effect. However, the District Court allowed most of the law to stand, including the provisions on alien registration cards and school data collection. (FAIR’s Legislative Update, Oct. 3, 2011) The DOJ appealed the District Court’s ruling and, in October, the 11th Circuit Court of Appeals enjoined both provisions. (FAIR’s Legislative Update, Oct. 17, 2011)

Amnesty advocates have been complaining bitterly that HB 56 is an unjust and unfair law. In July, the ACLU and other groups filed a lawsuit against HB 56, charging that, “Alabama’s extreme anti-immigrant law is unconstitutional and endangers public safety, invites racial profiling and interferes with federal law.” (ACLU Press Release, July 8, 2011) The open borders organization America’s Voice has said HB 56 “has battered Alabama’s reputation for months as crops have rotted from lack of available labor, children have been dropping out for fear of attending schools, and families have been split apart.” (America’s Voice Blog, Dec. 7, 2011) In November, illegal aliens brazenly protested the law with other amnesty advocates. (FAIR’s Legislative Update, Nov. 21, 2011)

Whether the outcry from these and other open borders organizations has swayed Alabama’s attorney general is unclear. In his memo to the House Speaker and Senate Leader, Strange did not explain how repealing these provisions would improve the law. And with regard to defending HB 56, it appears that repealing the provisions only makes the law easier to defend by eliminating key components of it.

Feds to Review Student Visa Program in Wake of Human Trafficking Bust

Secretary of State Hillary Clinton last week ordered a review of the J-1 student work visa program after Immigration and Customs Enforcement (ICE) agents found the visa was being used for human trafficking. (Associated Press, Dec. 7, 2011) On November 30, federal agents in New York arrested 25 mafia members from several families for illegally bringing in hundreds of women from Russia and Eastern Europe to the U.S. to dance and strip in New York clubs. (NY1, Nov. 30, 2011)

Homeland Security officials accused some of the suspects of helping the women obtain fraudulent work and travel visas. However, when the women got into the country, they were employed as strippers. (Id.) “Some were recruited as waitresses, some were told straight up what the situation was. Some were recruited from overseas through advertisements in foreign language newspapers throughout Russia and Eastern Europe, some were recruited from Facebook in Russia,” said James Hayes of the Department of Homeland Security. (Id.) Officials accused five men from Albany, Binghamton, and New Jersey of illegally marrying some of the women so that those women could apply for green cards to stay in the country. (Id.)

The J-1 visa was created in 1963 to allow students from other countries to temporarily work and travel in the US. (Associated Press, Dec. 7, 2011) According to the State Department, “The J-1 Visa provides countless opportunities for international candidates looking to travel and gain experience in the United States.” The J-1 visa is known for allowing foreign nationals to enter the U.S. through various programs—as high school or college students, professors or scholars, Au Pairs and interns, among other things. Depending on the program, these aliens may stay in the U.S. for periods ranging from a few weeks to several years. (State Department, J-1 Visa Programs) The J-1 visa program currently brings in more than 100,000 individuals per year to the U.S. (Associated Press, Dec. 2011)

The State Department’s order to review the program comes only weeks after it proposed new regulations for the “Summer Work Travel” program within the J-1 visa category and just months after other revisions took effect. (Federal Register 68808, Nov. 7, 2011) (Id.) According to the State Department, the rules were intended to address persistent reports of abuse: “[T]he number of program complaints received this year continues to remain unacceptably high and includes, among other issues, reports of improper work placements, fraudulent job offers, job cancellations upon participant arrival in the United States, inappropriate work hours, and problems regarding housing and transportation.” The proposed rules from the State Department cap Summer Work Travel program participants to 2011 levels and place a moratorium on new sponsors within the program. (Associated Press, Nov. 7, 2011)

In addition to the potential for fraud in the J-1 program, it also has the potential to undermine U.S. workers. Employers who hire a J-1 worker over an American worker save eight percent because the employers don’t have to pay Medicare, Social Security and unemployment taxes. (Id.) In addition, because the J-1 program requires participants to have health insurance before they arrive, employers do not have to bear that cost either. Many businesses say they need these J-1 workers to meet the demands of tourist season. (Id.)

Immigration Subcommittee Examines Weaknesses in Visa Waiver Program

Last week, the House Subcommittee on Immigration Policy and Enforcement held a hearing to discuss the risks and benefits associated with the Visa Waiver Program (VWP). The VWP allows visitors from 36 countries meeting certain criteria to come and stay in the U.S. for tourist or business purposes for up to 90-days without obtaining a visa. (See State Department Website, Dec. 11, 2011; see also INA § 217(c)(2)(A)) By not having to obtain a visa, a VWP traveler bypasses the normal human-to-human consular scrutiny that is intended to deny persons who represent a threat to the country for health, criminal, or security reasons, as well as those who have no intention of returning to their country after their visit. (See FAIR VWP Backgrounder, Oct. 2011) Piloted at the urging of the travel industry in 1986, Congress permanently authorized the program in 2000. (Id.)

“Since its creation, the VWP has been rightfully criticized on national security grounds,” Subcommittee Chairman Elton Gallegly (R-CA) avowed in his opening statement. (CQ Congressional Transcript, Dec. 7, 2011) “Congress has acknowledged these security concerns several times and added security-related requirements…But even with these changes,” he continued “the VWP is still the subject of significant security risks, both inherently and due to a lack of follow-up to ensure that countries become, or remain, compliant with the program’s requirements.” (Id.)

Several witnesses appearing before the Subcommittee expounded upon these risks in their testimony. Richard Stana, Director of Homeland Security and Justice issues for the Government Accountability Office (GAO), discussed the numerous persistent problems with the program. He first explained that although participating countries are required to share biographical, biometric, and terrorist watchlist information with the U.S. government, only some have signed such agreements and only a fraction have actually begun implementing them. Next, he commented that the Department of Homeland Security (DHS), which is required by Congress to conduct biennial security risk assessments of VWP countries, is overdue to conduct such assessments by more than two years in some instances. Finally, Mr. Stana remarked on the importance of implementing the exit portion of US-VISIT, which identifies aliens who overstay their terms of admission to the U.S., to the VWP. “[R]elated to the integrity of the VWP is [the] ability to determine traveler compliance with the terms of their visas…DHS and ICE need to do more to get on top of that issue,” he said. (Id.)

Agreeing with Mr. Stana, Jessica Vaughn, Director of Policy at the Center for Immigration Studies, also argued for the completion of the biometric exit portion of US-VISIT prior to any expansion of the visa waiver program. “[V]isa overstayers represent about four million to six million people within the illegal alien population,” she explained. (Id.) “A few have become terrorists, some commit crimes, but in general they’re costly to taxpayers…between $3 billion and $5 billion every year.”(Id.) Ms. Vaughn also advocated for increased interior immigration law enforcement prior to any expansion of the VWP. “There are 2 million, roughly, criminal aliens living here [and] … about 7 million illegal aliens working here in jobs that we need for Americans and legal immigrants,” she stated. (Id.) “[E]xpanding the VWP too fast or irresponsibly is going to make it that much harder for ICE and the price will be paid by [] Americans….” she concluded. (Id.)